1. This appeal is directed against the rejection of a petition for leave to file a suit for partition and separate possession of a half share in the plaint schedule properties in forms pauperis.
2. The learned Subordinate Judge, who enquired the in to the Original Petition, came to the conclusion that the appellant was not possessed of sufficient means but all the same rejected the petition on the ground that ' the petitioner on his own allegations does not have a cause of action and her present suit is barred by the previous decision in O. S. No. 203 of 1963, District Munsif's Court, Guntur, as confirmed in appeal. '
3. The suit is by the widow of a predeceased son of the Ist respondent herein for partition and separate possession of a half share in the plaint schedule properties. In the plaint it is alleged that the plaint schedule properties, were joint or joint family properties of her husband and the Ist respondent, and that they both constituted a Hindu undivided family and consequent on the death of her husband, she is entitled to a half share therein. She pleaded that she was not possessed of sufficient means to pay the court-fee. The defendant ( respondent ) denied that the allegation and also pleaded that in view of the decision in an earlier suit, O. S. No. 203 of 1963, the plaintiff's claim to a share in the plaint schedule properties was barred by the principle of res judicata. In that earlier suit the appellant had prayed for maintenance and for a charge on the present plaint schedule properties on the footing that they were joint family properties of her husband and the Ist respondent. One of the issues that fell for consideration in that suit was whether these properties were joint family properties and whether the plaintiff's husband was entitled to a share therein. The suit was decided against the present appellant after due enquiry and that finding was confirmed on appeal. In view of the above, the plea of res judicata was raised. This ground of objection found favour with the lower Court.
4. It is argued by Sri P. Ramakrishna Raju, learned counsel for the appellant, that the learned Subordinate Judge erred in holding that the plaint did not disclose a cause of action or that the suit as framed appeared to be barred by any law for, if as alleged by the appellant her husband and the Ist respondent were members of a joint family and the plaint schedule properties were joint family properties, the appellant was surely entitled to maintain the present suit for partition and separate possession of her share of the properties. In the Original Petition there is no averment that there was any earlier suit in which the question whether the plaint schedule properties were joint family properties or not came up for consideration. The averments made in the petition disclose a cause of action and as there is no mention of any earlier proceedings there was no occasion for the Court to consider whether the present suit is barred by ' res judicata. '
5. Order XXXIII, Rule 5, among others, lays down in clauses ( d ) and ( d-I ) that the Court shall reject an application for permission to sue as a pauper when the allegations do not show a cause of action or where the suit appears to be barred by any law. The allegations that are to be taken into account in deciding whether a cause of action is disclosed or not, are the allegations in the application for permission to sue as pauper. On a reading of the present petition, the gist of which is referred to above, it cannot be said that no cause of action is disclosed for if the appellant's husband had a share in the suit property, she would clearly be entitled to a share and she would have a cause of action for filing the present suit for partition and separate possession.
6. If that be so, what all the Court has to consider is, whether the allegations in the application for permission to sue as pauper disclose that the suit is barred by any law. It is not the case of any of the parties that a suit by a widow claiming to be entitled to a share in the joint family properties, to which her husband was entitled immediately prior to his death, is expressly or by necessary implication barred under any provision of law. The only contention is that the decision in the prior suit. O. S. No. 203 of 1963, operates as a bar on the principle of res judicata. That there was a prior suit and there was a decision therein with regard to the subject-matter of the present Original Petition, is not disclosed by any averment in the petition. That is a matter pleaded in defence by the respondent. But to determine whether the suit is barred by any law, the Court has to confine itself to the allegation in the petition and not to canvass the allegations in the respondent's counter made as a defence to the petitioner's claim. It is one thing to say that the suit is barred by law and a totally different thing to contend that the plaintiff's suit, although maintainable, no relief can be granted to her. It may be that on the principle of res judicata the Court is barred from entertaining a suit but all the same, for disposal of a petition under the Order XXXIII, Rule 5, Civil P. C. it is the averments in the petition that have to be looked into. If even from the averments in the petition the claim appears to be barred on the principle of res Judicata, the Court will be within its power in rejecting the petition and refusing leave to sue in forma pauperis. If from the averments in the petition the claim does not appear to be barred on the principle of res judicata and only the respondent pleads such a bar, that could not from the subject-matter of enquiry for that would be a decision as to whether the plaintiff is entitled to the relief prayed for and not an enquiry as to whether the averments in the petition disclose that the suit is barred by law. Any enquiry into the question whether the plaintiff is entitled to the relief claimed having regard to the plea of res judicata raised by the respondent, is beyond the scope of the enquiry of a petition under Order XXXIII, Rule 5, Civil Procedure Code.
7. A Bench of this Court in Venkataraya Chetty v. Ramachandriah Chetty, : AIR1970AP411 observed :
'The expression ' bar ' connotes a bar on the Court from entertaining the suit or against the person approaching the Court for relief initially. But it is quite a different thing to say that on an adjudication of the disputes raised in the suit, the plaintiff is denied relief which he wants in the suit..................If the petition does not disclose any facts even assuming that the same are intentionally suppressed, the Court will not be in a position to reject the petition on the ground that it is barred by law.....................If it is possible to reject the petition as barred by law on a mere reading of the petition, there should be no objection to the Court doing so either on hearing the petitioner alone or on hearing the respondent if such assistance is required. '
8. In Vijay Pratap Singh v. Dukh Haran Nath, : AIR1962SC941 , dealing with a case which went up from the Allahabad High Court, their Lordships of the Supreme Court observed :
'By the express terms of Order 33, Rule 5, Clause (d) the Court is concerned to ascertain whether the allegations made in the petition show a cause of action. The Court has not to see whether the claim made by the petitioner is likely to succeed ; it has merely to satisfy itself that the allegations made in the petition, if accepted as true would entitle the petitioner to the relief he claims. If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition shows a cause of action the Court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defences which the defendant may raise upon the merits nor is the Court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegation in the petition, prima facie, show a cause of action, the Court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him. '
9. In view of the above, it must be held that the learned Subordinate Judge was clearly in error in holding that the appellant had no cause of action for filing the suit and that it was barred by law in view of the prior decision in O. S. No. 203 of 1963.
10. As the learned Subordinate Judge has held that the appellant has no means to pay the court-fee, the petition for leave it file the suit in forma pauperis must be allowed. The appeal, therefore, succeeds and it is accordingly allowed but in the circumstances of the case, there will be no order as to costs.
11. Appeal allowed.